Daily Answer Writing
20 April 2021

Q) Frequent use of Ordinance making powers of the President undermines the role of the Legislature. Elucidate (150 words)

Source <https://www.thehindu.com/opinion/op-ed/the-ordinance-route-is-bad-repromulgation-worse/article34361919.ece>
GS 2: Separation of powers

Approach Answer:

Introduction: The Constitution of India under Article 123 and 213 provides the union and the state governments, powers to promulgate ordinances respectively. This power can be used only when the legislature are not in session and when such immediate action is needed. It further ceases to operate 6 weeks after the re-assembly of the respective legislature.

 

Undermining the powers of legislature with frequent use:

              1. Violation of Separation of powers Principle: The law-making function is for the legislature. Ordinance making power of the executive dilutes that power away.

              2. Retrospective in nature: The actual law in the case of ordinance is passed after the ordinance takes effect.

              3. Bypassing legislature: This power is often used to bypass the legislature.

              4. Passage of law without mandate: It is possible that the government has lost effective majority in the house, which cannot be proven unless the house is not in session, yet the government has power to promulgate ordinances.

              5. Problem of continued re-promulgation: In DC Wadhwa v. Sate of Bihar(1987) highlighted the problem of continued re-promulgation of ordinances. Supreme court has held that his would create an Ordinance Raj and is a "fraud" on the constitution.

              6. Concentration of power at a single point is a mark of authoritarianism. Ordinance allows executive to exercise legislative power as well.

             

Additional safety against executive excess:

              1. 'Immediate action' Clause necessary: The Supreme court in RC Cooper v. Union of India (1970) case held that the decision of ordinance can be challenged on the ground that 'immediate action' was not required, as mandated by the Constitution.

              2. Liable for Judicial Review: In 1980, in AK Roy v. Union of India, Supreme court held that President's Ordinance making powers are not beyond judicial review.

              3. Limitation on the legislative power: The Union government and the state governments can promulgate ordinances only on matters on which Parliament and the state legislatures have legislative powers respectively.

              4. Legislative Review : Whenever a Bill seeking to replace an ordinance is introduced in the House, a statement explaining the circumstances that had necessitated immediate legislation through ordinance route should also be placed before the House.

              5. Re-promulgation is unconstitutional: In January 2017, a seven-judge Constitution Bench declared this practice to be unconstitutional. The judgment concluded that, “Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes

 

Conclusion: These additional safeguard provide safety only against authoritarian power excesses. However, it still does not solve the challenge of encroachment of legislative powers. In the recent times, Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020 and the Indian Medical Council Amendment Ordinance, 2019, were re-promulgations. Similarly in 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.

Such frequent and rampant use of ordinance making power undermines the powers of the legislature.

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